Meet the Most Important Ted Cruz Birther: Ted Cruz

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POLITICS MAY 6, 2013

Meet the Most Important Ted Cruz Birther: Ted Cruz Ted Cruz is eligible to be president under almost any reading of the Constitution—except his own

If it wasn’t obvious beforehand, it became clear last week that Ted Cruz is likely to run for president. On Wednesday, the freshman senator’s advisors spilled the beans about his thinking on 2016 to National Review (short version: highly doable), and Friday Cruz showed up in the critical primary state of South Carolina to speak at the state GOP’s “Silver Elephant Dinner.” Which raises a question conspiratorial liberals have been waiting to ask of a Republican since at least 2008: Is Ted Cruz, who was born in Canada to an American mother and a Cuban father, even legally eligible to hold the highest office? 

The Constitution says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” As NBC’s Chuck Todd has pointed out, Cruz’s eligibility would seem to hinge of the definition of the term “natural born.”1 Is someone who was born abroad so obviously a natural born American?  

The consensus among legal experts appears to be, emphatically, “yes.” Here’s Temple University Law professor Peter Spiro, an expert on nationality law, on Todd’s MSNBC show Monday morning: 

I think it’s pretty clear that natural born is defined in such a way as to include everybody that has citizenship, and who got it other than through naturalization. So the fact that Ted Cruz had citizenship at birth, and he clearly did under the statute that applied at the time, it’s pretty clear that he qualifies as natural born.

But it turns out that there’s at least one legal heavyweight who would question Spiro’s argument—a guy who goes by the name of … Ted Cruz.

Here’s Cruz’s problem: Under further questioning, Spiro conceded that Cruz’s case isn’t really clear cut if you limit yourself to the actual wording of the Constitution. (The Constitution never defines what “natural born” means.) Rather, what makes Cruz’s eligibility a no-brainer is the way the country has chosen to interpret the Constitution in recent decades. “It’s a question of how our understandings have evolved over time,” Spiro said. “So the examples that you cited in the setup—George Romney, John McCain, Barry Goldwater—all pretty clearly establish that the American people are on board with somebody who was born outside of the United States, but who had citizenship at birth.” 

When Todd pressed further about how the question would be definitively resolved, Spiro added:

What you’ll end up with … is the consensus that develops through things like the resolution relating to John McCain [a non-binding, semi-stunt measure introduced by Senator Claire McCaskill in 2008 in which the Senate declared McCain eligible]. You’ll have editorialists in the major media outlets, you’ll have discussions like this one, in which it’s going to be hard to find somebody on the opposite side. So you’ll have this consensus that develops in an organic way, and in a way that doesn’t require the courts to get involved. So the only reason that there’s an argument here even is that the courts have not definitively resolved this question. And that’s something that they’re unlikely to do. So there’ll always be just a little bit of a door opening for political opponents to make these kinds of arguments in cases like this, but it’s really just a little bit of a door opening. 

Editorials in major media outlets? Cable chat-show debates? Well, good enough for me! But almost certainly not good enough for a constitutional conservative like Cruz, at least if the question were anyone else's presidential eligibility. As you may have heard, Cruz, who actually memorized much of the Constitution in high school, believes the document should be interpreted rather literally. As his former professor Robert P. George once told National Review, “Ted was very drawn to the idea of constitutional originalism"—his undergraduate thesis was about the genius of the Ninth and Tenth Amendments. 

This is a worldview that Cruz has carried with him ever since. After clinching the Republican nomination for U.S. Senate in Texas last August (which effectively won him the seat), Cruz told a crowd of supporters, “We did it. Millions of Texans, millions of Americans are rising up to reclaim our country, defend liberty and restore the Constitution.” At a gun control hearing in March, he famously advised his California colleague Dianne Feinstein that “all of us should begin as our foundational document with the Constitution.” 

More than anything else, Cruz seems galled by the argument Professor Spiro trotted out in defense of his presidential eligibility—the idea that the constitution’s meaning evolves organically over time. At a Senate confirmation hearing in April, Cruz asked an Obama judicial nominee whether he considered the Constitution a “living document”—a way of ferreting out whether the nominee might be unacceptably liberal. (The nominee wisely appeased Cruz: “'I would say no. The Constitution has an enduring, fixed quality to it.'')

Of course, even this might not be a problem if Cruz thought certain parts of the Constitution, even when interpreted literally, were more significant than others—more relevant to contemporary discourse and, therefore, more binding on our current political system. For all their wisdom and foresight, the founders did take some pretty baroque rhetorical turns from time to time. 

Alas, nothing doing here either. As Cruz put it at the 2013 National Rifle Association convention last week in Houston: “The Constitution matters. All of the Constitution. It’s not pick and choose. It’s not take what part you like and get rid of the parts you don’t like. … Every word of the Constitution matters.” 

Such a bummer. All this time I assumed we would be debating the constitutional flaws inherent in gun control, domestic drone strikes, and Obamacare if Cruz were to run for president. But, in deference to Cruz’s own principles, it turns out we’ll first have to debate whether the founders would have even allowed him to serve. If you read the Constitution the way Cruz does, it’s not at all clear that they would have. 

Noam Scheiber is a senior editor at The New Republic. Follow Noam on Twitter at @noamscheiber

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Presumably, a naturalized citizen would have to have been naturalized by the time the constitution was adopted.

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